After hearing objections from hospitals and physicians about a proposed “opt-in” approach to obtaining patient consent for health information exchange (HIE), the Maine legislature has dropped a proposal to switch from an “Opt-out” approach.

The original proposal would have been required to give patients an opt-in form that they would need to sign to authorize having their electronic health records shared over HealthInfoNet, the statewide HIE.

Concerns were expressed by the state hospital and medical associations  and HealthInfoNet that the “opt-in” approach would result in few people taking advantage of the benefits of the HIE. Other HIEs using the opt-in approach have found that a relatively small percentage of patients take the initiative to sign the form. Amy Landry, HealthInfoNet’s communications director stated that, “Unless a majority of state residents’ records are accessible via the HIE, physicians and hospitals are unlikely to use it because of its limited value”.

HealthInfoNet has always instructed participating providers to give patients a Notice of Privacy Practices, as required under HIPAA, that also describes that their data may be shared via the HIE and offers the opportunity to opt out.

Last year, the Health and Human Services Privacy and Security Tiger Team, which advises federal regulators, endorsed a “meaningful consent” approach that HIEs should take. It accommodates either the opt-in or opt-out approach, emphasizing educating patients about their privacy rights as well as HIE procedures.

The revised proposal, which awaits the governor’s signature, requires informing patients about the benefits and risks of the HIE and giving them the opportunity to “opt out.” Unless they take action to opt out, their information will automatically be accessible via the HIE, which stores certain records in a central data repository.

To view the revised Maine legislation, visit the legislature website to access LD 1337, but read the “adopted amendments” section.